In 2013 I wrote an article for the Retirement & Estate Planning Bulletin, Vol 15 No 10 (2013) called, ‘The Right to Die: well, it depends’. It examined at the time the use of Living Wills or Advance Directives. Advance Directives are covered in the Mental Capacity Act 2005 at sections 24 to 26. They allow someone to say in advance if they would like to decline medical treatment and what sort at the end of their life. One of the concerns which I found at the time was some doctors were finding it difficult to put them into practice, mostly over interpretation difficulties. Below is an extract from the article, ‘The Right to Die: well, it depends’. The situation has improved. However if someone is creating a Living Will there remains the need to be precise. The article does not argue for or against euthanasia it focuses on making from a legal perspective a Living Will. Craybeck Law makes Living Wills for clients. 

Extract from ‘Retirement & Estate Planning Bulletin, Vol 15 No 10 (2013)’ - ‘The Right to Die: well, it depends’

Many patients presume their valid and applicable Living Will will be respected. However Corke et al (Journal of the Australian Academy of Critical Care Medicine 11:2 June 122-8 2009) found Living Will’s only to have some influence on treatment decisions, with the majority of doctors having reservations, with most not following Living Will’s and raising questions over their effectiveness (Hastings Center Report 34 2 30-42 2004). The reasons for non-compliance with Living Will’s stem from:

• uncertainty as to interpretation;
• circumstantial changes;
• decision making skills;
• demonstration of intention to revoke the Living Will.

Interpretational uncertainty 

When the words used in drafting fail to identify applicable circumstances, refusals becoming ambiguous. One of the difficulties with Living Will’s is that they are frequently made years before use. This creates interpretation problems, together with does this really reflect the patient’s current wishes (CHEST 141(1) 232-238 2012). Medical advice should be sought regarding refusals and wording.

Circumstantial changes

Did the maker intend the Living Will to apply here? It must be shown the change is significant, with the maker clearly demonstrating the Living Will was not to apply. This can include treatment changes and medical advances unbeknown to the Living Will maker, as well a situation changes. Living Will’s should regularly be reviewed to avoid these confusions.

Decision making skills

We are frequently poor at decision making as John F. Kennedy said about the Bay of Pigs invasion, “How could I have been so stupid?”. If we do become unwell, our ability to make decisions or change minds also becomes impaired (Sorger et al, Behavioural Sciences and the Law 25 393-404 2007). Equally when this comes to making decisions on behalf other people we are equally poor (Seckler AB et al, Annals of Internal Medicine 15(2):92 - 98 1991). Proxy decision makers need to be appointed with care.

Revocation 

Following s42(1)(c) PAA which says “... the principal may revoke a direction at any time the principal has capacity for the matter covered by the direction;”. Revocation should be effected in writing, confirming the maker has sufficient capacity. Other evidence can point to revocation, including conversations and written documentation. To avoid ambiguity clients should regularly reconsider their Living Will’s.

Should I make an Living Will?

Clients should be advised on the following issues:

• the usability of Living Will’s is at best marginal;
• they are recognised by healthcare professionals, but more frequently as guidance;
• to ensure recognition refusals need to be clear and identifiable.

As death is our final act, for many it’s important their death is how they envisaged it. Knowing we can send instructions about this into the future, provides a sense of autonomy for many. Without an Living Will the individual diagnosed with inoperable cancer or a deteriorating condition, remains unable to play a part in their final act, that of having a good death.

Craig Ward of Lundie MSc BA(Hons) TEP MBPsS CertCouns 

Craig Ward of Lundie is a solicitor and partner at Craybeck Law LLP.